Calcutta High Court (Appellete Side)
In Re : Bishwanath Kundu vs State Of Kerala on 1 July, 2013
Author: Toufique Uddin
Bench: Toufique Uddin
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01/07/2013
CRA No. 702 of 2012
In re : Bishwanath Kundu
... Petitioner
Mr. Tulsidas Roy
Mr. Tushar Mukherjee
Mr. H. Ghosh
Mr. T. Roy
Mr. S. Das
... For the appellant
Mr. Ashraf Ali
... For the CBI
This appeal arose out of judgment and order dated
16.10.2012 passed by the learned Judge, Special CBI Court, Bichar
Bhawan, Calcutta in Spl. (CBI) Case No. 18/2006 for commission of
offence under Section 120B read with Section 420 IPC and Section
13(2) read with Section 13(1)(d) of the Prevention of Corruption Act,
1988 and thereby convicting the appellant and sentencing him to
suffer R.I. for 5 years and to pay a fine of Rs. 50,000/- in default to
suffer R.I. for 1 year for commission of offence under Section
420/120B IPC.
In the background of this appeal the fact in a nutshell is that
one A. K. Bhattacharjee, Vigilance Officer, W.B. Telecom Circle,
Calcutta-1 lodged a complaint with Superintendent of Police,
CBI/ACB/Calcutta on 11.3.1999 through registered post over the
misappropriation and loss of revenue amounting about Rs. 1.20
crores by way of non-payment of telephone bills in two telephones
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being numbers 58606 and 58611 for a period of four months from
12.1.98 to 4.5.98 by the accused person in connivance with others.
The defacto-complainant has submitted that one Biswajit Roy
applied for two telephone connections under OYT general category at
Biswanath Kundu's house at 37, Old Berhampore Road, Churipara,
Ranaghat on 7.1.1998. Sri Kundu was made nominee in the
concerned application forms and the prescribed advance deposit of
Rs. 10,000/- for each connection was paid. Necessary advice notes
were very quickly issued on 9.1.98 and telephone connections
bearing numbers Ranaghat 58606 and 58611 were very promptly
installed on 12.1.98 by Sri S. Ballav, the then SDO(T) of Ranaghat
and his staff. The defacto complainant has further alleged that the
first telephone bills dated 21.4.98 were issued by the AO(TR), O/O,
the D.M., Krishnanagar for both the above telephones which were
actually dispatched on 28.5.1998 and the second bills were issued
on 11.6.98. Both the bills were returned to its sender 'undelivered'
with postal remarks "Not known". Total amount of said bills was
about Rs. 1.20 crores which remained unpaid till the date of filing of
this complaint. The defacto-complainant has further submitted that
the case was investigated at first by Sri M. R. Biswas, the CGM,
W.B. Telecom Circle and submitted investigation report on 23.10.98.
On perusal of the said report it will be found that the party managed
to get those two telephone connections on priority basis and made
huge number of STD and ISD calls worth Rs. 1.20 crores and fled
away without keeping any trace before issuance of the first bill. He
has submitted that he has suspected connivance in between
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Biswajit Roy and Biswanath Kundu and probably some
departmental officers and staff at Ranaghat and Krishnanagar. He
lodged a complaint as directed by CGM, W.B. Telecom Circle for
realization of dues as well as to fix the responsibility of the earring
departmental officers/staff for taking suitable departmental actions.
The investigation reports submitted by the defacto-complainant and
other officer prior to lodging this complaint have been annexed with
this petition.
On the basis of written complaint on 15.3.99, the S.P. of
Police, CBI/SEB/Cal. started RC Case No. 10/99 dated 15.3.99.
During investigation Biswajit Roy and Biswanath Kundu were
arrested.
Subrata Ballav, the then SDOT had issued advice notes on
9.1.98 directing the JTO, Extn., Ranaghat Telephone Exchange to
install the new telephone connections at the address of Biswajit Roy,
Old Berhampur Road, Churipara, Ranaghat. Sri S. N. Sarkar was
the JTO at the point of time. Though the advice notes were
addressed to Sri Sarkar but the work was executed without his
knowledge through Sadhan Biswas, phone mechanic on 12.1.98
under the specific order of Sri Ballav as shown in the exchange NTC
Register on 11.1.98. Sri Ballav asked Sri Biswas to install the
phones at the premises of Biswajit Roy. Sri Sadhan Biswas reported
to Sri Ballav on 12.1.99 about the non-availability of Biswajit Roy at
the said address. Then Mr. Ballav reportedly sent him back with
instructions to install the phones at the premises of Biswajit Roy.
He directed Sadhan Biswas to install two phones as per the
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direction of Biswajit Roy. Later the telephones were installed in
presence of Biswanath Kundu. Sri Ballav provided STD/ISD facility
in the telephones of Biswajit Roy vide number 58606 and 58611 on
12.1.98 on the basis of an application dated 12.1.99 without the
knowledge of S.K. Biswas, the then SDE/Internal, Ranaghat as per
the request of accused Biswanath Kundu. The SDE was to provide
STD/ISD facility from the Exchange and keep records in the
Exchange log. Accused Ballav provided the STD sand ISD to the
subscribers of the telephone numbers 58606 and 58611 without
proper verification and authentication of the subscriber in
contravention with the standing DOT circular number 2-72/96/PHA
(Part I) dated 19.9.96 and ignoring the instructions therein.
Accused Sri Ballav used to handle the external and internal
department matters seldom allowing offers work order. He had
access and was also conversant to the Exchange computer. He used
to take print out of the telephone wise mere readings of the
twlephones of the exchange for the billing cycles and used to send
them through S. K. Biswas, the then SADE/Internal to the AO (TR),
Krishnanagore office of TDA, Krishnanagore for issue of the bills
alongwith BC tape cartridges which contained the STD/ISD
particulars of the telephones. He had taken out the print outs of
meter readings for the period from 26.11.97 to 27.1.98 and send
them through Sri Biswas but it did not contain the mere readings of
telephone numbers 58606 and 58611 alongwith other telephone
numbers whose numbers were beyond 58999. It was the duty of
accused Sri Ballav to ensure the metre reading of all the telephone
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figure in the list. The same was sent to AO (TR), Krishnanagore, on
28.1.98 alongwith BC Tape cartridges but the cartridges were later
claimed by the AO (Tr) Krishnanagore to be faulty. Accused Ballav
used to keep executed advices notes of the Ranaghat exchange and
would occationally give some of them in bunches to send them
through Sri S.N.Sarkar, the then JTO (external) to the AO(Tr) for his
reference in issuing bills. the advice notes in respect of telephone
No. 58606 the amount of OYT deposit was not mentioned and the
advice notes ws incomplete. The advices notes in respect of 58611
was not received by the AO(TR) till date. For sending the faulty
cartridges for the period from 26.11.97 to 27.1.98 the AO(TR) courl
not raise bill for telephone No. 58606 and 58611 from the period of
12.1.98 to 27.1.98. The telephone bill from the period schedule
dated 21.4.98 as the complete advice notes were not received by him
till date. The AO(TR) after getting confirmation from Sri S. K.
Biswas, the SDOT, Ranaghat vide his letter dt. 27.5.98 and taking
reference of these telephone till 25.3.98 would raise the bills and
send them to subscriber by registered post with AD on 28.5.98. A
further bill of these two telephones for the period from 27.3.98 to
25.5.98 were prepared on 11.6.98 on the basis of the metre reading
particulars and were send to subscriber by registered post. The
total amount of the aforesaid bills were more than Rs. 1.20 crores.
All the bills were returned back to the AO(Tr) Krishnanagore by the
postal dept. with remarks not known as the subscriber could not be
traced out for delivery of the bills at the given address. The
STD/ISD facility in respect of both telephones were disconnected on
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4.5.98. He has submitted that accused Sri Ballav is responsible for
the fault. Biswajit Roy and Biswanath Kundu did not give the
whereabouts of Biswajit Roy. During investigation it is found that
several calls were made from the aforesaid two tlphones to telephone
number 3500776 at the premises of Biswajit Roy at 167B,
B.B.Ganguli Street, Calcutta-12. He has submitted that accused Sri
Ballav after entering into Telecom Department and as such he has
submitted charge-sheet for commission of offence punishable under
Section 120B/420 IPC against the accused Biswajit Roy and
Biswanath Kundu and Section 120B/420 IPC and Section 13(2)
read with Section 13(1)(d) of the Prevention of Corruption Act, 1988
against accused S. Ballav.
After completion of investigation Police submitted charge-
sheet by holding that Sri Ballav after entering into criminal
conspiracy with Biswajit Roy and Biswanath Kundu cheated the
Telecom Dept. and as such they committed offence punishable
under Section 120B/420 IPC read with Sections 13(2) and 13(1)(d)
of the Prevention of Corruption Act, 1988. Accordingly, the Charge-
sheet was submitted after investigation of the case.
After hearing, the learned trial court framed charges under
Section 120B/420 IPC read with Sections 13(2) and 13(1)(d) of the
Prevention of Corruption Act, 1988 against the three accused
persons. The contents of the charges were read over and explained
to them who pleaded not guilty and claimed to be tried.
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To contest this case the prosecution examined as many as 27
witnesses while 2 persons were examined on the defence side. The
accused persons were examined under Section 313 of the Code of
Criminal Procedure.
The defence case as appeared from their evidence and the
trend of cross-examination and replies given by the accused persons
at the time of examination under Section 313 of the Code of
Criminal Procedure is denial of offence with a plea of innocence.
On trial the learned court below convicted the present
appellants by the impugned judgment.
Now, it is to be seen if the impugned judgment suffers from
any material irregularity and calls for any interference or not.
Sections 120B/420 IPC and Sections 13(2) and 13(1)(d) of the
Prevention of Corruption Act, 1988 read as under:
S. 120B. Punishment of criminal conspiracy - (1) Whoever, is a
party to a criminal conspiracy to commit an offence punishable with death,
imprisonment for life or rigorous imprisonment for a term of two years or
upwards, shall, where no express provision is made in this Code for the
punishment of such a conspiracy, be punished in the same manner as if he
had abetted such offence.
(2) Whoever, is a party to a criminal conspiracy other than a
criminal conspiracy to commit an offence punishable as aforesaid shall be
punished with imprisonment of either description for a term not exceeding
six months, or with fine or with both.
S. 420. Cheating and dishonestly inducing delivery of property
- Whoever, cheats and thereby dishonestly induces the person deceived to
deliver any property to any person, or to make, alter or destroy the whole or
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any part of a valuable security, or anything which is signed or sealed, and
which is capable of being converted into a valuable security, shall be
punished with imprisonment of either description for a term which may
extend to seven years, and shall also be liable to fine.
S. 13(1)(d) of the Prevention of Corruption Act, 1988. Criminal
misconduct by a public servant - (1) A public servant is said to commit
the offence of criminal misconduct -
If he,
(i) by corrupt or illegal means, obtains for himself or for any other
person any valuable thing or pecuniary advantage ; or
(ii) by abusing his position as a public servant, obtains for any
person any valuable thing or pecuniary advantage without
any public interest; or
(iii) while holding office as a public servant, obtains for any person
any valuable thing or pecuniary advantage without any
public interest.
S. 13(2). Any public servant who commits criminal misconduct shall
be punishable with imprisonment for a term which shall be not less than one
year but which may extend to seven years and shall also be liable to fine.
The learned counsel for the appellants argued mainly on the
following points:
1.There is nothing against the present appellant available on record. Telephone Officers being the SDO (Telephone) and his associates were actually involved but the SDO(T) was acquitted on the self-same evidence.
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2. It was alleged that the present appellant signed the application form in the column of nominee but the liability of the nominee, if any comes after the death of the Principal. So, he is not liable.
3. The present appellant has no role to play in the alleged offence.
4. Biswanath Kundu was a tenant under the present appellant. So, the hatching up conspiracy under Section 120B IPC does not arise. If for argument's sake, it is believed as contended by the prosecution that during investigation the appellant did not cooperate with the investigating authority to give the whereabouts of Biswajit Roy. The action does not come under Section 120B IPC.
5. His last but not the least submission was that in the meantime, the accused has suffered almost 1 year. So, the period already undergone should be treated as the period of sentence.
On the other hand the learned counsel for the CBI strenuously argued the appellant knowing fully well the nefarious activities and design of Biswajit Roy hatched up a conspiracy with him and he allowed his premises to be used as STD/ISD Telephone Booth and therefrom a huge number of calls outside the country was made and a fabulous amount of Rs. 1.20 crores remained unpaid to the telecom authority. The other accused Biswajit Roy acted with the active connivance of the present accused person. So, by no stretch of imagination the sentence of present accused can be 10 reduced to the period already undergone or he should not be acquitted.
To appreciate the case from a better angle some relevant pieces of evidence are required to be noted here.
PW 1 is a member of Telephone Regulatory Authority of India (TRAI). He accorded a sanction for prosecuting one S. Ballav who is one of the accused persons in this case. He happens to be the SDO(Telephone) Ranaghat. PW 1 proved the sanction order Ext. 1 by stating that before according sanction he applied his mind.
PW 2 is a retired OSD-in-charge of vigilance, West Bengal Telephone Circle. He interrogated Sri Kundu who stated that he let out the premises at a rental of Rs. 500/- but could not say anything about the whereabouts of Biswanath Roy.
PW 3 is a Divisional Engineer of Telephone Vigilance State. He alongwith one A.K.Bhattacharjee being an employee investigated into the complaint in connection with the telephone nos. 58606 and 58611 (Ranaghat) installed in the house of Biswanath Kundu and those telephone connections were provided in the name of Biswajit Roy, the other accused. PW 3 also stated that the present appellant was asked about the whereabouts of Biswajit Roy but he disclosed nothing saying only that he was his tenant. Biswanath Kundu is stated by PW 3 not to have cooperated with the investigating authority in course of investigation. He further stated that in the corner of the Kundu's house there was a board named as "STD/ISD BOOTH" and the said two telephones were provided under OYT scheme. Due to lapse of time he could not identify the present 11 accused. From the cross-examination done on behalf of Biswanath Kundu it appears that he signed as witness in the application form marked as Ext. 6 and 6/1.
PW 4 identified Ext. 6 and 6/1.
PW 5 stated that the name of the present accused was there as nominee in the application form of Telephone (Ext. 6 and 6/1).
PW 6 did not say anything about the present appellant. PW 7 was declared hostile. He did not say anything about the present accused.
So, too PWs 8, 9, 10, 11, 12 and 13.
PW 14 saw the signature of the present appellant in Ext. 6 and 6/1.
PWs 15, 16, 17, 18, 19, 20 and 21 did not say anything regarding the present appellant but stated about merit of the case.
PW 22 is the D.E.(T & M), Krishnanagore who joined Ranaghat Telephone Exchange as S.D.E. (Internal) stated that Biswanath Kundu was known to him physically. He said from two numbers 58606 and 58611 there was heavy number of cabs.
PWs 23 and 24 also did not say anything about the present appellant but stated about the merit of the prosecution case.
PW 25 stated that the time of cross-examination made by Biswanath Kundu no legal witness was called by PW 25 before conducting search. He seized some documents Ext. 32, 32/1 and 33 from his house.
PW 26 stated nothing about the present appellant. 12 PW 27 is the I.O. On 30.8.2001, he searched the premises of Biswanath Kundu at Biswas Para, Ranaghat and identified Ext. 32 and 32/1. In cross-examination he stated that some documents were seized from the house of Biswanath Kundu but those have not been cited in the charge-sheet.
Incriminating materials on record are available against the accused Biswanath Kundu. Especially the fact that the investigation authority asked him about the whereabouts of accused Biswajit Roy but he did not cooperate with them is of serious consequence. Further, question was put to him at the time of examination under Section 313 of the Code of Criminal Procedure that his name appeared in the application form made by Biswajit Roy as a nominee for the purpose of taking two telephone connections. He simply denied that he put signature or he did not cooperate with them.
The learned counsel for the CBI placed before me the following decisions:
I. (2012) 1 SCC (Cri) 116 [Sherimon vs. State of Kerala], II. (2009) 1 SCC (Cri) 51 [Yogesh @ Sachin Jagdish Joshi vs. State of Maharashtra], and III. (2013) 1 C Cr LR (SC) 1 [Baliya @ Bal Kishan vs. State of Maharashtra].13
In Sherimon (supra) it is held by the Hon'ble Apex Court that evidence on record is totally inadequate to prove criminal conspiracy because meeting of minds are not proved and conviction order reversed.
In Yogesh @ Sachin Jagdish Joshi (supra) it is held by the Hon'ble Apex Court that meeting of minds of two or more persons is sine qua non of criminal conspiracy. Incriminating circumstances must form a chain of events from which conclusion guilt of accused can be drawn.
In Baliya @ Bal Kishan (supra) it is propounded that to prove the criminal conspiracy essential meeting of minds between the accused persons is necessary.
The above decisions may be put into application in the present case for the following reasons.
It is true that criminal conspiracy cannot be seen outwardly. It is to be proved by the circumstances.
Criminal conspiracy is defined in Section 120A IPC which reads as under:
S. 120A. Definition of criminal conspiracy - When two or more persons agree to do or cause to be done -
(1) an illegal act or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement is pursuance thereof.
It is true that all the witnesses did not say the role played by the present appellant. But what was his role to be examined 14 cautiously. It appears from the enquiry report as well as the evidence of PW 2 that during investigation he went to the house of Biswanath Kundu and found a glow-sign board showing mention of STD/ISD options was dismantled in a room wherein in terms of applications being Ext. 6 and 6/1 filed by the other accused such lines were installed and in these applications the present appellant signed.
From the application it reveals that the name of Biswanath Kundu was shown as a nominee and he was declared to be cousin brother of Biswajit Roy. This fact has not been challenged by the present appellant in evidence. The ground taken by the appellant that the question of playing the role of a nominee comes after the death of the original applicant has no basis and that argument stands rejected outright. Biswanath Kundu took the plea that he simply let out his house to Biswajit Roy and thereafter he does not know anything. So, it is clear that he had connection with Biswajit Roy in regard to installation of telephone connections including STD/ISD facilities. His stand is that he adopted total silence whenever he was approached for the purpose of investigation in this case. The instant case is for cheating of public money. Mere silence cannot absolve his responsibilities. He ought to have seen what is going on in the premises. He let out the premises for the purpose of telephone connection. True it is that it is not possible for him to see if regular payment of telephone bills is paid or not. But that man is the owner of the premises. The telephone line has been disconnected and the glow-sign board has been dismantled. He is 15 supposed to know the closure of the telephone booth and dismantling of the glow-sign board. When PWs 2 and 3 visited his house he showed them the room where the telephone was installed. The evidence revealed that Biswanath Kundu did not cooperate with them in course of investigation. The learned counsel for the accused contended that if for argument's sake it is believed that the accused did not cooperate, in that event, the offence, if any, should not come under Section 120B IPC. It is totally unacceptable contention because the fact that Biswanath Kundu signed as witness in the application form in presence of PW 27. His hand-writing has been proved as Ext. 39 and 40. He did not deny that he is not cousin brother of Biswanath Roy. The evidence showed that Biswajit Roy had telephone connection provided by the Ranaghat Telephone Exchange. Further, it is available from record that at that time the name of G. C. Roy has surfaced as the father of Biswajit Roy residing at Bipin Behari Ganguly Street, Calcutta and the accused's father runs a business and the accused works there. The accused Biswajit Roy attempted to deny his relationship with the telephone connection by way of distancing him from the accused Biswanath Kundu. But it has been proved to be false. The attitude of Biswanath Kundu is required to be looked into. He remained silent about the identity of Biswajit Roy as he was his cousin brother. The accused is the best person to give proper identity of Biswajit Roy because he let out the premises to him. The telephone connection was taken for the private purpose. But Biswajit Roy had an open telephone booth with STD/ISD facility.16
Therefore, Biswajit Roy was hand-in-glove with Biswanath Kundu in every respect. The entire circumstances have established that there was criminal conspiracy between both the accused persons and there was meeting of mind hatching up a plan to open the booth and then to make default in payment of government money against huge number of telephone calls from the telephone booth. Reliance may be put on the decisions as reported in (2002) 2 SCC (Cri) 637 and Yogesh alias Sachin Jagdish Joshi vs. State of Maharashtra (2009) 1 SCC (Cri) 51 wherein it was propounded that instance of conspiracy and its object can be drawn over from surrounding circumstances and conduct of the accused. Here, in this case, the chain of evidence amply proves the criminal conspiracy because both Biswajit Roy and Biswanath Kundu started the telephone booth and have cheated the telephone authority by making payment of no amount of outstanding bills of Rs. 1.20 crores.
The sanction order shows that the telephones were installed in presence of the accused Biswanath Kundu and it is not the case that he personally took such telephone connection. Because existence of such line is not denied. Then who else took the connection? There is no answer. This is a pointer to set at naught the silence maintained by Kundu. Further, reliance may be put on Government of NCT (Delhi) vs. Jaspal Singh (2003) 10 SCC 586 in this regard. What is essential is the agreement to commit the offence. Some overt act has been done in furtherance of common intention to form criminal conspiracy. Here, in this case, the above 17 behavior of both of them formed criminal conspiracy inasmuch as on the filing of their applications telephone connections were provided. But the fact remains that they did not make any payment against outstanding dues of Rs. 1.20 crores and further fact that the present accused pleaded innocence. Such behavior is enough to point that there was a criminal conspiracy.
The learned court below has carefully examined the case record and rightly came to its finding which is justified.
His observation as regards the role of departmental Officers is quite justified. The Telephone authority may be apprised of for taking appropriate steps.
This being the position, I am of the opinion that the appeal has no merit.
Accordingly, the same stands dismissed.
Let a copy of the judgment alongwith the lower court record be sent down immediately to the learned court below for necessary action.
Urgent certified copy of this judgment and order, if applied for, be given to the parties on priority basis.
(Toufique Uddin, J.)